Sunday, February 21, 2010

If A Protest Happens in the Forest . . .

According to this report, a federal judge has overturned several convictions of protesters affiliated with the Rainbow Family of Living Light who gathered on U.S. forest land without obtaining the required permits:

The Rainbow Family is a loosely connected counterculture group that gathers on public land somewhere in the United States every summer, to party, play and pray for peace and the environment. Every year, the gathering culminates in a July 4 prayer circle, and every year, they battle the U.S. Forest Service over the right to be there.

The Forest Service requires groups of 75 or more to obtain noncommercial use permits when congregating in a national forest, but many Rainbow Family members refuse to sign or acknowledge the need for those permits.

In 2005, during a dispute over where to set up camp in the 900,000-acre Monongahela wilderness, more than 140 people were cited for the misdemeanor offense of failing to secure permits.

The trials of eight members of the Rainbow Family Coalition were deemed procedurally defective, owing to the fact that an adequate record had not been created for review on appeal. A magistrate tried the group in a makeshift courtroom in the Monongahela National Forest. Apparently the recording equipment used to transcribe the trials was defective.

Although the decision did not reach any substantive speech issues, the case raises an interesting First Amendment question regarding protests on public lands. If the protest takes place in a public venue where no audience is present, do the protesters have any First Amendment speech or expressive association rights? In some cases, courts have expressed skepticism that speakers engaging very small audiences have any strong First Amendment interests in conveying their messages. The Supreme Court has made this point in a case involving a residential protest. But other courts have indicated that the lack of any general public audience does not negate or weaken a First Amendment claim. One case involved a protest in a remote forest area.

Even if they are not seeking to reach a targeted or general public audience, protesters have self-actualization and solidarity interests in these circumstances. The act of gathering may itself be a form of dissent. There is no reason, then, why they should not in a proper case be allowed to assert a First Amendment challenge to permit and other regulations.